Yet too often when confronted with an international dispute, corporate counsel hires outside counsel largely based on past success in the hopes that simple experience will suffice to ensure a successful outcome. But because every dispute is different and poses its own unique challenges, putting together an initial case plan is one of the best ways to help ensure that both corporate and outside counsel are efficiently and effectively litigating the dispute.
An initial case plan can be prepared relatively quickly and often for a fixed fee. It should ideally consist of three major sections:
1. Consideration of the major facts surrounding the dispute,
2. An evaluation of the major legal issues presented, and
3. A discussion of the strategy to be pursued.
Presented below are some of the steps that can be taken early on in any dispute to put together an initial case plan and chart out a course for success.
The first step in the creation of the initial case plan is to understand the facts pertinent to the dispute. This happens in three ways:
After outside counsel has been retained, there should be an in-depth discussion of the case with corporate counsel. This discussion should cover the facts that corporate counsel is aware of, which may vary from as little as the information contained in a demand letter or Request for Arbitration, to as much as the full details of an internal corporate investigation.
In this discussion, outside counsel should also try to get a sense of how the corporation is organized, including who had responsibility for the issues in dispute and how the company keeps its documents. And there should be a discussion of what the company’s goals are regarding the opposing party and the dispute.
Based on this conversation with corporate counsel, outside counsel should then review the relevant documents. These include the contract at issue as well as any correspondence between the parties related to the dispute. Additionally, outside counsel should review any relevant documents identified by corporate counsel.
The goal of this initial document review is not to conduct a full review to determine which documents are relevant. Instead, it is designed to both give outside counsel a view into the main factual issues between the parties, as well as to further help identify who the key individuals with information relevant to the dispute may be.
Once these key individuals are identified—either by virtue of their position within the company or due to the appearance of their name on relevant documents—they should be briefly interviewed. The goal is not to speak with every possible witness, but instead to help identify the individuals around whose statements and testimony the case will likely turn.
In most cases, there end up being anywhere from two to five witnesses who have the most critical information regarding the dispute, and whose testimony will largely be relied upon. For purposes of preparing the initial case plan, the goal should be to spend one or two hours with each of these witnesses, either via videoconference or in person at the corporate offices.
One important reason for conducting these interviews is to get a sense of how the witnesses may perform during a hearing. For example, in many cases, someone from a position of authority within the company will need to appear as a witness and serves effectively as the “face” of the company.
If that person comes across as a sophisticated and credible business person, then both corporate and outside counsel should feel more comfortable allowing the case to go before a tribunal.
If, on the other hand, that person appears arrogant and personally contemptuous of the opposing party (particularly where bad faith is alleged), then it may be necessary to either avoid that person as a witness or settle the dispute before any hearing. Ascertaining how witnesses may perform early on can be critical to developing a strategy for the case.
In addition to determining the potential witnesses’ credibility, it is also important to get an overview of the facts as seen by the key witnesses, as well as finding out from them who else may need to be interviewed and where any important documents may be stored so that they can be preserved and later reviewed.
These initial fact-finding steps can often be conducted during a single week. Their primary goal is to allow outside counsel to become familiar with the major factual issues in the case, while also pointing to the additional work that will need to be done to investigate or develop further factual issues as the case proceeds.
In drafting the factual section of the initial case plan, outside counsel should first put together the story of the dispute based on the facts as currently understood, dividing this story into the main factual areas that will be at issue in the case and noting where in the story the facts are uncertain or unclear and need further development. This story should include a section briefly discussing the possible damages at issue in the dispute.
Next, based on the documents and initial interviews, a list of potential witnesses to be interviewed, and key witnesses to be re-interviewed, should be assembled by the factual areas where their testimony may be relevant. Following the list of potential fact witnesses should come a list of the likely subject areas where expert testimony could be used in the case, including any need for an expert on damages.
Finally, the plan should include a list of the documents needed for review to further develop the facts. It is often helpful to prioritize these lists of witnesses and documents for corporate counsel so that the continued review and evaluation of the case can proceed in a systematic way.
The next step in putting together an initial case plan is to review the main legal issues that will be presented in the case. This is not an exhaustive review of the law, but instead an overview of the main principles that will govern the case, as well as an effort to identify the main legal disputes so that areas of further research are identified.
There are three main areas of legal issues that should be considered:
In determining the procedural rules that govern, it is necessary to consider any dispute resolution clause in the contract, including whether there are any obvious grounds to challenge the clause’s application to the dispute.
Questions to be answered regarding the procedural rules include whether mediation is required or optional, the steps inherent in the provided dispute resolution procedure, any unique features of the applicable mediation or arbitration rules, and any general issues of note with respect to the place of the arbitration and the laws of that jurisdiction.
The next legal issue to address is which substantive law governs the dispute. In well-drafted contracts, the governing law of the contract is normally an agreed term. But if the governing law is not provided in the contract, then a brief choice-of-law analysis should be conducted to determine which possible laws may apply to the contract.
This can often be a significant issue of contention between the parties and depend heavily on an analysis of the facts underlying the dispute. While the initial case plan may provide some guidance toward an answer based on general choice-of-laws principles, it is not meant to finally decide which laws to argue for, but rather to highlight the relevant issues for a full analysis.
Finally, after establishing the procedure and the applicable substantive law, the legal evaluation turns to the dispute itself, reviewing the key provisions of any contract which may have been breached or might be directly relevant to the issues in the case based upon the facts as currently understood.
This evaluation should consider all claims and possible counterclaims that can be made based on the facts. If possible, the initial case plan should discuss the general principles of contract interpretation under the applicable substantive law.
The plan should then identify the legal topics where further work will need to be done. This includes an analysis of whether a legal expert will be needed to address specific legal issues under the applicable substantive law and/or whether co-counsel with familiarity with that substantive law should be retained. Such co-counsel can be particularly helpful when dealing with subjects within a specialized area of law, such as construction or securities cases.
Overall, the legal evaluation should explain the main legal principles that should not be in dispute as well as identifying those areas where legal disputes are likely between the parties, and laying out suggestions for further research and work—including retention of experts or co-counsel—that will be needed to successfully argue the case.
Putting the factual and legal sections together, and identifying the witnesses, experts, documents, and legal issues that need further work is immensely helpful in getting ready to proceed with an international dispute, and can itself result in significantly better coordination between corporate and outside counsel.
But the true increases in efficiency and effectiveness come from choosing the right strategy to manage and try the dispute. This strategy section has four main parts:
The first portion of the strategy section is a discussion of the goals and motivations of the client and the opposing party. The client’s goals will depend on whether the client is the claimant or respondent, whether any counterclaims may be made, whether there is a continuing business relationship with the opposing party, whether third-parties have an interest in the case, etc.
One of the major issues for outside counsel to consider is whether the client is interested in trying to have the dispute end quickly via an early mediation or attempt at settlement.
The goals and motivations of the opposing party are more difficult to determine, but the initial case plan should try to evaluate them to the extent possible. For example, an opposing party that is insured for the claim may be more likely to settle, while a prime contractor attempting to blame a subcontractor for faulty work—and so preserve its relationship with the owner—may be more interested in vindication by a tribunal than monetary damages.
The next portion of the strategy section is the potential timeline. This will be heavily influenced by the contract’s dispute resolution provisions, and given the uncertainties until terms of reference have been agreed upon with the tribunal, will often provide only a rough outline of what is to come. But the timeline will show the major steps going forward, and should consider at what point of the dispute, if any, it would make strategic sense to approach the opposing party with a proposal to mediate or settle the dispute.
Determining the proper approach to take in arguing the case is a major point for consideration between corporate and outside counsel. One important consideration is whether to take the shotgun approach—including every possible argument, even those that may be unlikely to prevail—or the rifle approach, which focuses on the handful of best arguments that are most likely to carry the day.
Where there are page limits, as in domestic litigation, the rifle approach is clearly superior as it focuses the limited briefing on the most critical issues.
In international arbitration, however, page limits are rare, often allowing for every possible argument to be made at length. The shotgun approach can also preserve arguments for which a party does not currently have sufficient evidence—including allegations of bad faith—but hopes to discover more during the document disclosure period.
The shotgun approach, however, often results in significantly increased costs, as more issues need to be researched and included in the briefs and arguments. An analysis and recommendation between these two possible approaches—including which arguments would or would not be made—is important to have early on between corporate counsel and outside counsel in deciding how to move forward with the case.
Another important discussion regarding approach is the theme or themes to be developed in the case. These themes are ideas that the pleadings and arguments will attempt to convey through the facts and discussion of law to resonate with the mediator or arbitrators.
One such example is the “Big Company ripping off the Little Guy.” Selecting a theme early on can help to get the entire team together telling the same story, and aids in identifying issues that should be focused on and others that need to be minimized if possible.
Finally, the strategy section should also describe the plan to manage and staff the case. Lawyers are notoriously bad managers, and it is not uncommon for additional attorneys to be added to a case weeks before a big filing simply because the team failed to follow a plan and is now behind schedule.
By identifying the main factual and legal issues in the case early on, it becomes possible to plan how many lawyers will be needed for the case, and how the work should be logically divided between them.
By presenting the management and staffing plan for the case, corporate counsel can also make decisions that affect how efficiently the case is run. For example, associates are often called upon to learn everything possible about their area of the facts. Depending on the value of the case and the issue’s importance, it may make sense to bring in a senior attorney to learn those facts and cross-examine the relevant witness. But for other cases, it may be more efficient and far more economical to have the associate—who already knows the facts—cross-examine that witness.
Overall, by identifying the client’s goals and planning a strategy to meet those goals early on, counsel can move forward with the case in the most effective and efficient way possible. For example, if the client’s goal is an early mediation, it may be possible to assign a single associate to research the most pressing factual or legal issues and put together a short mediation brief—based largely on the work done in the initial case plan.
If the mediation is successful, the client will achieve significant savings from having run a very lean legal team up to that point. If it is not, though, the case can be quickly staffed-up per the initial case plan, proceeding with the case as planned.
* * *
Even the best prepared sailor must constantly correct his course to account for the ever-changing world around him, whether from storms, uncharted obstacles, or other nearby ships. Similarly, an initial case plan must be tended to and revised based on the changing circumstances of the case.
The opposing party may uncover a document putting the case in a whole new light, may fail to raise its best legal arguments that you identified, obviating the need to research those legal issues, or a key witness may quit the company and refuse to cooperate further. The list of possibilities is endless, and all must be handled as they arise.
But the initial case plan puts both corporate counsel and outside counsel on the right course to an efficient and effective outcome, and becomes an invaluable document with which to manage the case moving forward. It is shared and discussed with corporate counsel as well as with all members of the outside legal team, so that everyone is on the same page regarding the client’s goals and strategy.
The factual and legal sections of the initial case plan form the basis from which to draft a mediation brief, and as they are fleshed out with further research, documents, and witness testimony, take shape into the major pleadings in the case.
Even more important, however, the initial case plan is a cornerstone for effective communication and collaboration between corporate and outside counsel, in laying down a plan to help the client achieve its goals as quickly and economically as possible.
The author is principal of Hubb Legal PC, in Newburyport, Mass., which helps companies plan for and resolve international disputes. Hubb Legal represents clients in both international litigation and alternative dispute resolution, including international commercial arbitration and investor-state arbitration.
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